species of testimony essential to his conviction. The court is no prepared to say that the act which is to operate against his rights did not rire that it should be performed with a full knowledge of its eration. It would seem consonant to the usual course of proceeding in other respects in criminal cases, that the prisoner should be informed that he had a right to refuse to be tried until some person who committed the act should be convicted; and that he ought not to be considered as waiving the right to demand the record of conviction, unless with the full knowledge of that right he consented to be tried. The court however does not decide what the law would be in such a case. It is unnecessary to decide it; because pleading to an indictment, in which a man is charged as having committed an act, cannot be construed to waive a right which he would have possessed had he been charged with having advised the act. No person indicted as a principal can be expected to say I am not a principal. I am an accessory. I did not commit, I only advised, the

act.

The authority of the English cases on this subject depends in a great measure on the adoption of the common law doctrine of accessorial treasons. If that doctrine be excluded, this branch of it may not be directly applicable to treasons committed within the United States. If the crime of advising or procuring a levying of war be within the constitutional definition of treason, then he who advises or procures it must be indicted on the very fact; and the question, whether the treasonableness of the act may be decided in the first instance in the trial of him who procured it, or must be decided in the trial of one who committed it, will de. pend upon the reason, as it respects the law of evidence, which produced the British decisions with regard to the trial of principal and accessory rather than on the positive authority of those decisions.

This question is not essential in the present case; because if the crime be within the constitutional definition, it is an overt act of levying war, and, to produce a conviction, ought to have been charged in the indictment.

The law of the case being thus far settled; what ought to be the decision of the court on the present motion? Ought the court to sit and hear testimony which cannot affect the prisoner? or ought the court to arrest that testimony? On this question much has been said: much that may perhaps be ascribed to a misconception of the point really under consideration. The motion has been treated as a motion confessedly made to stop relevant testimony; and, in the course of the argument, it has been repeatedly stated, by those who oppose the motion, that irrelevant testimony may and ought to be stopped. That this state

ment is perfectly correct is one of those fundamental principles in judicial proceedings which is acknowledged by all, and is founded in the absolute necessity of the thing. No person will contend that, in a civil or criminal case, either party is at liberty to introduce what testimony he pleases, legal oral, and to consume the whole term in details of facts unconected with the particular case. Some tribunal then must decide on the admissibility of testimony. The parties cannot constitute this tribunal; for they do not agree. The jury cannot constitute it; for the question is whether they shall hear the testimony or not. Who then but the court can constitute it? It is of necessity the peculiar province of the court to judge of the admissibility of testimony. If the court admit improper or reject proper testimony, it is an error of judgment; but it is an error committed in the direct exercise of their judicial functions.

The present indictment charges the prisoner with levying war against the United States, and alleges an overt act of levying war. That overt act must be proved, according to the mandates of the constitution and of the act of congress, by two witnesses. It is not proved by a single witness. The presence of the accused has been stated to be an essential component part of the overt act in this indictment, unless the common law principle respecting accessories should render it unnecessary; and there is not only no witness who has proved his actual or legal presence, but the fact of his absence is not controverted. The counsel for the prosecution offer to give in evidence subsequent transactions at a different place and in a different state, in order to prove-what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blannerhassett's island? No: that is not alleged. It is well known that such testimony is not competent to establish such a fact. The constitution and law require that the fact should be established by two witnesses; not by the establishment of other facts from which the jury might reason to this fact. The testimony then is not relevant. If it can be introduced, it is only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such manner that the question of fact ought to be left with the jury. The conclusion, that in this state of things no testimony can be admissible, is so inevitable that the counsel for the United States could not resist it. I do not understand them to deny that, if the overt act be not proved by two witnesses so as to be submitted to the jury, all other testimony must be irrelevant; because no other testimony can prove the act. Now an assemblage on Blannerhassett's island is proved by the requisite number of witnesses; and the court might submit it to the jury whether that assemblage

amounted to a levying of war; but the presence of the accused at that assemblage being no where alleged except in the indictment, the overt act is not proved by a single witness; and of consequence all other testimony must be irrelevant.

The only difference between this motion as made and the motion in the form which the counsel for the United States would admit to be regular is this: it is now general for the rejection of all testimony. It might be particular with respect to each witness as adduced. But can this be wished? or can it be deemed necessary? If enough be proved to shew that the indictment cannot be supported, and that no testimony, unless it be of that description which the attorney for the United States declares himself not to possess, can be relevant, why should a question be taken on each witness?

The opinion of this court on the order of testimony has frequently been adverted to as deciding this question against the motion.

If a contradiction between the two opinions exist, the court cannot perceive it. It was said that levying war is an act compounded of law and fact; of which the jury aided by the court must judge. To that declaration the court still adheres.

It was said that if the overt act were not proved by two witnesses, no testimony in its nature corroborative or confirmatory was admissible or could be relevant.

From that declaration there is certainly no departure. It has been asked, in allusion to the present case, if a general commanding an army should detach troops for a distant service, would the men composing that detachment be traitors? and would the commander in chief escape punishment?

Let the opinion which has been given answer this question. Appearing at the head of an army would, according to this opinion, be an overt act of levying war. Detaching a military corps from it for military purposes might also be an overt act of levying war. It is not pretended that he would not be punishable for these acts. It is only said that he may be tried and convicted on his own acts in the state where those acts were committed, not on the acts of others in the state where those others acted.

Much has been said in the course of the argument on points on which the court feels no inclination to comment particularly; but which may, perhaps not improperly, receive some notice. That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less

true.

No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of

calumny. No man, might he let the bitter cup pass from him without self reproach, wou'd drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace.

That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature; but if any conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.

The arguments on both sides have been intently and deliberately considered. Those which could not be noticed, since to notice every argument and authority would swell this opinion to a volume, have not been disregarded. The result of the whole is a conviction, as complete as the mind of the court is capable of receiving on a complex subject, that the motion must prevail

No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transaction on Blannorhassett's island can be admitted; because such testimony, being in its nature merely corroborative and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses.

This opinion does not comprehend the proof by two witnesses that the meeting on Blannerhassett's island was procured by the prisoner. On that point the court for the present withholds its opinion for reasons which have been already assigned; and as it is understood from the statements made on the part of the prosecution that no such testimony exists. If there be such let it be offered; and the court will decide upon it.

The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.

As soon as the chief justice had concluded Mr. Hay observed that the opinion just delivered by the court furnished matter for the serious consideration of the counsel for the prosecution; and he hoped the court would grant them time to consider it.

After some desultory conversation, the chief justice, at Mr. Hay's request, delivered him the opinion, that he might read and consider it.

Mr. Hay moved that the court might be adjourned until Wednesday. Mr. Lee and Mr. Randolph objected to it, on account of the inconveniences to which it would subject the jury and the great number of witnesses attending.

The court adjourned till six o'clock in the afternoon.

At six o'clock the court met, and adjourned till Tuesday.

TUESDAY, September 1st, 1807.

The court met according to adjournment.

Mr. HAY informed the court, that he had nothing to offer to the jury of evidence or argument; that he had examined the opinion of the court, and must leave the case with the jury.

The jury accordingly retired and in a short time returned with the following verdict; which was read by colonel Carrington, their foreman: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty."

This verdict was objected to by colonel Burr and his counsel as unusual, informal and irregular. Colonel Burr observed, that wherever a verdict is informal the court will either send back the jury to alter it, or correct it itself; that they had no right to depart from the usual form; that the rule universally is to ask them on their return "how say you? is he guilty or not guilty?" to which they give a direct answer of "guilty," or "not guilty;" that this is correct and responsive to the charge always read to them by the clerk: "if you find him guilty, you are to say so, &c; if you find him not guilty, you are to say so and no more."

Mr. HAY thought the verdict ought to be recorded as found by the jury, which was substantially a verdict of acquittal; and that no principle of humanity, policy or law, forbade its being received in the very terms used by the jury; that they were not bound to find a verdict in the shortest possible way; that the form did not affect the substance.

Mr. MARTIN said that it was like the whole play," Much ado about Nothing;" that this was a verdict of acquittal; that there was nothing to do but to answer the question of guilty or not guilty; that it was the case with every jury in every instance, they had or had not evidence before them. Did they wish to have the verdict entered in this form on the record, as a censure on the court for suppressing irrelevant testimony? that he was conscious they had no such meaning; and as they had not, the